United States v. Clinton Thompson, III

Opinion by Judge REINHARDT; Dissent by Judge MURGUIA.

OPINION

This case involves a penalty enhancement statute, 18 U.S.C. § 844 (h)(1), which imposes a mandatory ten-year consecutive sentence (in addition to the sentence for the underlying felony) on anyone who “uses fire ... to commit any felony.” The enhancement is increased to twenty mandatory consecutive years for a second offense. 1 § .844(h). Defendants Clinton Thompson, Tavrion Dawson, and Samuel Eaton were convicted of bank larceny, and their sentences were enhanced because they were convicted of using a thermal lance—a tool designed to cut through metal using extreme heat. The defendants used the tool to cut open the back of an ATM in order to steal the money it contained. We must now decide whether the penalty enhancement for “us[ing] fire” to commit a felony under 18 U.S.C. § 844 (h)(1) is applicable to the use of a thermal lance tool. We conclude that it is not. As a result, we reverse defendants’ convictions under § 844(h)(1) and the corresponding conspiracy counts under § 844(m); we vacate the sentences on the remaining counts of bank larceny; and we remand to the district court for resentene- *1013 ing on the…

dissenting:

The majority’s holding that use of a thermal lance, when ignited to burn through and melt metal automated teller machine (“ATM”) vaults during a bank robbery, does not involve the use of fire under 18 U.S.C. § 844 (h)(1) is counter to the ordinary and common definition of fire. Because defendants’ use of a thermal lance to commit bank larceny constitutes the use of fire to commit a felony for purposes of 18 U.S.C. § 844 (h)(1), I would affirm each sentencing enhancement.

I.

A.

Samuel Eaton devised a scheme to steal money from local banks’ ATM vaults. For the first robbery, Eaton recruited Christopher Williams, a co-conspirator who was charged separately and testified for the prosecution at trial, as well as Clinton Thompson III and Tavrion Dawson. In order to open the metal ATM vault and steal the monies locked inside, Eaton used a thermal lance. While Eaton used the thermal lance to melt through the vault exterior, Williams operated, a makeshift extinguisher—a hand-held sprayer filled with water—to contain the fire and prevent it from burning up the monies housed inside. Eaton and Williams absconded with approximately $80,000, leaving behind charred walls,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50381 Plaintiff-Appellee, D.C. No. v. 2:10-cr-00304-

JFW-1

CLINTON ELWYN THOMPSON, III,

AKA Darion Jones, AKA Calvin Leon Thompson, AKA Clinton Edwin Thompson, AKA Clinton Elway Thompson, AKA Clinton Elwin Thompson, III, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 10-50479 Plaintiff-Appellee, D.C. No. v. 2:10-cr-00304-

JFW-2

TAVRION DAWSON,

Defendant-Appellant. UNITED STATES OF AMERICA, No. 11-50081 Plaintiff-Appellee, D.C. No. v. 2:10-cr-00304-

JFW-3

SAMUEL ANTHONY EATON, AKA

Samuel Eaton, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted April 8, 2013—Pasadena, California

Filed August 29, 2013

Before: Stephen Reinhardt and Mary H. Murguia, Circuit Judges, and Donald W. Molloy, District Judge.*

Opinion by Judge Reinhardt; Dissent by Judge Murguia

* The Honorable Donald W. Molloy, District Judge for the…